3 Colum. J. Eur. L. 257 (1997)
Julio A. Baquero Cruz. Master of European Community Law (LL.M.), college of Europe (Bruges); Spanish lawyer, Researcher, European University Institute (Florence).
I don’t want to belong to any club that will accept me as a member.
– Groucho Marx
Some things are difficult to explain logically. Even empirical sciences present problems that will forever stay unsolved. This is particularly so in the realm of law, for judges are not to solve logical conundrums, but to decide what is reasonable through interpretation of norms. This is the usual way to settle private law conflicts.’ Public affairs were for centuries operated without cogent legal rules, for power was too arrogant to be filtered by any system of such rules. Attempts to develop it were made in various legal orders throughout history by extrapolation of private law categories. However, the juridification of public affairs was seldom thorough, in part for political reasons, but also because public law satisfies societal needs of a different nature and should not always imply considerations of fairness. Nonetheless, the distinction is sometimes neglected, as in the European Community, where inter-institutional conflicts are sometimes interpreted as mere disputes for power by the judiciary, and thus settled overlooking other important aspects.
Constitutional judges usually rule on conflicts between the central and peripheral institutions of a polity, where the parties try to preserve or enhance their own prerogatives. Some of these cases may be confusing, and in order to understand them one must examine the political reality of the time. Their rulings may be adequate if afterwards the constitutional system works more efficiently and the values that a given constitution enshrines are better respected. A court can be subject to pressure and, as a consequence, its decisions may not be efficacious. This happens in authoritarian regimes or States with a weak constitutional culture. Even in polities with a long-standing constitutional tradition the capability of courts to substitute the absent will of the legislator when a norm is lacking or unclear may be challenged, in an attempt to establish limits to their discretion.
The European Court of Justice (ECJ), when acting as a constitutional court, becomes embroiled in these situations, and it may or may not justify solutions that are “politically correct” but juridically dubious. The uneasiness for the Court derives from the tension involved in drawing the line between judicial discretion and indiscretion, between the normal exercise of its function of ensuring “that in the interpretation and application of [the] Treaty the law is observed” and judicial activism of quasi-legislative nature.
The Community external relations are a rich source of this sort of problems for various reasons. First, the Treaty provisions on external relations are confusing and fragmentary, so that the Court was always called upon to play a role that its drafters had consciously and carefully neglected in 1957: defining the reach of the Community external competence. Normally so, because when the Treaty was signed the Community itself was an international affair for the States, and the degree of evolution that it was to achieve was uncertain. Secondly, the import and political sensitivity of these issues oblige the ECJ to adopt a pragmatic approach that makes difficult to ascertain the precedential value of its pronouncements. And thirdly, since external relations is a field in which the interests of the States are particularly divergent and unstable, they wish to maintain intact their powers to the maximum extent, avoiding the risk of being diluted within the Community decision-making process, or outvoted by the majority voting system.
Opinion 1/94 on the Agreement establishing the World Trade Organization (WTO) was a turning point in the sinuous case law on external relations, probably being for the Court a “no win situation. At first sight, one perceives a conspicuous conflict between the Commission and the Council – and some intervening States – but it is difficult to grasp its motives. The underlying issue, manifested through the extent of Article 113 and implied powers, was the evolution of European integration and its impact on States’ competence. The importance of this step in the jurisprudence is obvious, for it constitutes animportant revision of the previous case law on the subject, confirmed moreover by the subsequent Opinion 2192.
If placed in the last series of leading Community law cases one might muse about a metamorphosis of that certaine idle de l’Europe which Pescatore saw embedded in the ECJ.6 Some expected an era of self-restraint from the European judiciary,7 and Opinion 1/94 appears to be an important instance of this trend. Factors extraneous to the merits of the case may explain it to some extent. The composition of the Court might be one of them – States appointing less pro-European judges in order to temper a Court “running wild”‘ – but overall the opposition from a number of citizens, institutions and States to further judicially driven integration. The Court may be echoing this mood with a less integrationist discourse, more aware of social and institutional response. Its interpretative method may have changed accordingly – strict constructionism instead of teleological and systematic interpretation.
It is the purpose of this study to dissect Opinion 1/94 in order to realize how the law has changed in the field of external economic relations. Extra-legal reasons will be sought for the parts of the Opinion that are legally unsound, trying to find out whether the change was unavoidable, and whether or not there is a real mutation or just another instance of the case by case approach. Its impact on subsequent jurisprudence and its position in the recent evolution of the Court’s discourse will also be examined.